United States v. Louis Navarro, 2008 TNT 244-9, No. 07-2711 (2nd Cir. 12/17/2008).
2nd Circuit wrote:UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LOUIS NAVARRO,
Defendant-Appellant.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to summary orders filed after January 1, 2007, is permitted and is governed by this court's Local Rule 32.1 and Federal Rule of Appellate Procedure 32.1. In a brief or other paper in which a litigant cites a summary order, in each paragraph in which a citation appears, at least one citation must either be to the Federal Appendix or be accompanied by the notation: "(summary order)." A party citing a summary order must serve a copy of that summary order together with the paper in which the summary order is cited on any party not represented by counsel unless the summary order is available in an electronic database which is publicly accessible without payment of fee (such as the database available at http://www.ca2.uscourts.gov/). If no copy is served by reason of the availability of the order on such a database, the citation must include reference to that database and the docket number of the case in which the order was entered.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the seventeenth day of December two thousand and eight.
PRESENT:
Wilfred Feinberg,
Pierre N. Leval,
JosÉ A. Cabranes,
Circuit Judges.
FOR DEFENDANT-APPELLANT:
Louis Navarro, pro se.
FOR PLAINTIFF-APPELLEE:
John Schumann, (Richard T. Morrison, Assistant Attorney General, on the brief, Glenn T. Suddaby, United States Attorney, Steven W. Parks, of counsel), Department of Justice, Tax Division, Washington, D.C.
Appeal from a final order of the United States District Court for the Northern District of New York (Gary L. Sharpe, Judge).
UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the final order of the District Court is AFFIRMED.
Defendant Louis Navarro appeals pro se from a June 4, 2007 order of the District Court, granting the government's petition to enforce an Internal Revenue Service ("IRS") summons. We assume the parties' familiarity with the factual and procedural history of the case, though we revisit key portions of that history here.
On March 30, 2006, the IRS issued an administrative summons to Navarro and his wife1 to obtain information related to his taxable income for 2001 through 2005. See ROA doc. 1, Ex. 1. Navarro failed to comply with the summons, and on January 19, 2007, the government filed a petition to enforce the summons in the District Court. See ROA doc. 1. In an attached declaration, IRS Revenue Officer Terry H. Cox stated that he was conducting an investigation into Navarro's tax liability, and that he had issued the summons to Navarro to give testimony and to produce books, papers, records, or other data not in possession of the IRS for examination. See ROA doc. 1, Ex. 1. On January 22, 20007, the District Court entered an order, which was then amended on February 15, 2007, directing Navarro to show cause why he should not be compelled to comply with the summons. See ROA doc. 3, 4. Navarro responded to the order by filing a motion to dismiss the petition, in which he argued that the summons violated his Fifth Amendment right against self-incrimination, as well as a motion to quash the summons, in which he argued, inter alia, that the summons was "not issued in good faith." ROA doc. 6, 7. On June 4, 2007, following a hearing, the District Court entered an order granting the government's petition. See ROA doc. 21.
On appeal, Navarro argues that the District Court erred by (1) presuming that he is a "taxpayer"; (2) not allowing him to represent his wife at the hearing as there is no evidence that the Constitution meant for the term "counsel" to apply only to licensed attorneys; (3) presuming that 26 U.S.C. § 7602 is applicable to the investigation of income tax matters; (4) presuming that "there was both law and authoritative or legislative regulation" that made him, an "American[ ] working in the private sector of the American economy, subject to "some unstated 'income tax' matters"; (5) failing to answer questions that Navarro put forth to the District Court during the hearing; (6) claiming to be an Article III Court, when the District Court is, according to Navarro, truly an Article IV Court without jurisdiction in this matter; and (7) not making any findings of fact or conclusions of law to deny Navarro's motions. See Appellant Br. at 8-9. Furthermore, Navarro asserts that "no evidence was produced" to prove that the government has standing to bring this suit, nor that the IRS is an established agency of the government. Id. at 9.
When reviewing an order enforcing an IRS summons, we review the District Court's factual findings for clear error and its conclusions of law de novo. See Mollison v. United States, 481 F.3d 119, 122 (2d Cir. 2007) (per curiam).
The IRS has authority to issue summonses to ascertain the liability "of any person for any internal revenue tax" and to "examine any books, papers, records, or other data which may be relevant or material to such inquiry." 26 U.S.C. § 7602. However, "IRS summonses have no force or effect unless the [IRS] seeks to enforce them through a [26 U.S.C.] § 7604 proceeding." Schulz v. Internal Revenue Serv., 395 F.3d 463, 464 (2d Cir. 2005) (per curiam).
For a District Court to enforce a summons, the IRS must demonstrate that: (1) the summons was issued for a legitimate purpose; (2) the summoned data may be relevant to that purpose; (3) the information is not already in the IRS's possession; and (4) the administrative procedures required by the Internal Revenue Code for issuance and service have been followed. See United States v. Powell, 379 U.S. 48, 57-58 (1964). It is well established that an affidavit from a government official, attesting that each of the Powell requirements has been met, is sufficient to establish a prima facie case. See, e.g., Mollison, 481 F.3d at 123 (internal citations and quotations omitted). Once the prima facie case is established, "the burden shifts to the taxpayer to disprove one of the four Powell criteria, or to demonstrate that judicial enforcement would be an abuse of the court's process." Id. at 122.
In the present case, IRS Revenue Officer Cox's declaration accompanying the petition established a prima facie case for the issuance of the summons. In response, Navarro has offered no evidence to show that the summons was not issued for a legitimate purpose, or that any of the other Powell factors have not been met, or that enforcing the summons would be an abuse of the District Court's process. Accordingly, he has failed to meet his burden.
Navarro's remaining claims are wholly frivolous, and he provides no valid authority for his contentions and has identified no errors of law or clearly erroneous findings of fact.
CONCLUSION
We reject all of defendant's claims on appeal. Accordingly, the June 4, 2007 final order of the District Court is AFFIRMED.
FOR THE COURT,
Catherine O'Hagan Wolfe,
Clerk of Court
FOOTNOTE
1 Navarro's wife filed an appeal from the District Court's order, which she then withdrew. See U.S.C.A. Dkt. Sht. (No. 07-2711-cv) at 9/14/2007 Entry (Order).
END OF FOOTNOTE
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